Brief facts of the case

Ms Bernadette Enever (the employee) was employed by Barloworld Equipment South Africa (the employer) as a category analyst. The Employee Policy Handbook (Handbook) explicitly states that the employer may require its employees to undergo medical examinations during the course of their employment. Additionally, the Handbook forbids the use and possession of alcohol while also prohibiting access to the workplace for anyone under the influence of alcohol or drugs. The Handbook incorporates the employer’s Alcohol and Substance Abuse Policy (Policy) which adopted a zero-tolerance approach to the possession and consumption of drugs and alcohol in the workplace. The employee accepted and signed acknowledgment of the Handbook.

On 29 January 2020, the employee was required to undergo a medical test, including a urine test, the results of which came back positive for the use of cannabis. The employee was instructed to go home and told to return for a repeat test after seven days, but on four further occasions the employee tested positive for cannabis. A notice of disciplinary action followed on 25 February 2020. The employee pleaded guilty, but in mitigation of sanction, the employee mentioned the benefits she experienced, including reduced anxiety levels as a result of using cannabis for that purpose. On 30 April 2020, she was summarily dismissed when an independent disciplinary enquiry chairperson saw little reason to issue a less severe outcome given her stated intention to continue with her treatment regime of using cannabis for her medical ailments.

The employee then referred a dispute to the Commission for Conciliation, Mediation and Arbitration, however, the conciliation did not take place as a result of the COVID-19 pandemic. The employee then approached the Labour Court.

The Labour Court

The employee challenged the fairness of her dismissal and alleged that she had been unfairly discriminated against based on the grounds of her spirituality, conscience, belief, or other such arbitrary ground. The Labour Court dismissed her claim.

The employee referred the matter to the LAC.

The Labour Appeal Court

The employee raised four issues for determination:

1. Whether the employer had differentiated between the employee and its other employees in relation to the use of cannabis for medicinal reasons.
2. Whether there was a direct causal connection between the employee testing positive for cannabis and her dismissal, which could have constituted an act of discrimination against her based on her spirituality, conscience or belief, or on an arbitrary ground in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995.
3. Whether the employer’s Policy was in and of itself unfair and discriminatory.
4. Whether the approach adopted by the employer was insulting, degrading and humiliating, and an impairment of the employee’s dignity as a result of such unfair discrimination.

The LAC did not deal with the issue of the direct causal connection between the positive test and the dismissal as this was conceded by the employer.

When assessing whether the employee experienced unfair discrimination based on a listed ground, the LAC accepted “spirituality” as being synonymous with the listed ground of religion. The LAC agreed with the court a quo that there was no evidence of discrimination based on any listed ground per se, because the employee’s dismissal was not based on her spiritual beliefs where she had admitted using cannabis for recreational purposes and not just medicinally.

Regarding the argument that the relevant policy differentiated between alcohol and cannabis users based on an arbitrary ground, the employee was required to show that there had been an impairment of her human dignity in a comparable manner to discrimination based on a listed ground. While both groups of users faced being sent home pursuant to a positive test result, alcohol users could return after testing negative the following day. This was not the case for cannabis users where traces of the drug remain in the blood stream for an appreciably longer period. Therefore, the fact of a positive test for cannabis use would not address the sobriety of the user or indicate whether the user was impaired when carrying out duties and functions for the employer.

The employee argued that the discrimination she faced as a cannabis user seriously infringed upon her dignity by violating her right to privacy and subjecting her to a humiliating process that portrayed her as a “junkie”, because when testing positive, the employee had not been shown to have been impaired in the performance of any of her duties.

An objective consideration of the employer’s Policy was that any employee who worked for the employer could never use cannabis at all. However, employers are not barred in justifiable circumstances from asking their employees to completely refrain from certain conduct where an employee is required to operate heavy or dangerous machinery or equipment, or work in a high-risk environment. Policies against drug and alcohol use are standard and are aimed at compliance with the employer’s obligations to maintain a safe and healthy working environment in terms of applicable occupational health and safety legislation. However, the LAC did not find this aspect a compelling reason for the infringement of the employee’s right to privacy. The employee had been employed in an administrative role in an office environment. Within the context of the right to privacy, the LAC reasoned that the reliance on a blood test alone, without proof of potential or actual impairment on the work to be performed, was insufficient.

The LAC found there had been a violation of the employee’s dignity and privacy as the policy prevented her from engaging in conduct that had no impact on the employer per se, yet the employer was able to compel her to choose between her job and the exercising of her rights. The employer had not been able to show that she was intoxicated at work, that her work was adversely affected or that she had created an unsafe working environment for herself, her fellow employees or other people at the workplace.

The LAC did not accept that because the employer had a generally dangerous workplace, that the zero-tolerance rule was justified or that it constituted an inherent requirement of the job not to consume cannabis after hours or over weekends. The LAC emphasised that the outcome might have differed if the employee had been impaired during working hours or had been required to operate heavy or dangerous machinery etc. The LAC clarified that its decision did not apply universally to all employees in all workplaces, but only to those employees who were desk bound and not required to carry out hazardous or risk-based work.

The LAC concluded that the employee’s dismissal was automatically unfair based on unfair discrimination and awarded her 24 months’ remuneration as compensation.

Look out for our updated guideline on substance abuse in the workplace which
will be published soon.